ML20079J573

Response in Opposition to Citizens Assoc for Sound Energy (Case) 821214 Motion to Suppl Exhibits.Info to Be Presented in Applicant Brief Should Be Considered in Disposing of Case Instant Motion.Certificate of Svc Encl

ML20079J573
Person / Time
Site:	Comanche Peak
Issue date:	12/23/1982
From:	Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8212280273
Download: ML20079J573 (11)

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00CHETED December 23FS1982 UNITED STATES OF AMERICA

. NUCLEAR REGULATORY COMMISSION 82 DEC 27 /d0:25 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD -

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In the Matter of ) 'M

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TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 and

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COMPANY, et ) 50-446 (Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses)

APPLICANTS' ANSWER TO CASE'S MOTION TO SUPPLEMENT CASE'S EXHIBITS Pursuant to 10 C.F.R. 2.7 30(c), Texas Utilities Generating Company, et al. (" Applicants") hereby respond to the December 14, 1982, motion of Citizens Association for Sound Energy (" CASE") to supplement its exhibits. For the reasons set forth below, Appli-cants urge the Atomic Safety and Licensing Board (" Board") to deny CASE's motion.

I. BACKGROUND A. CASE Exhibius Already Admitted At the close of hearings conducted in the captioned proceed-ing on September 13-17, 1982, the Board directed CASE to submit for the Board's consideration a list of exhibits not previously admitted which CASE wished to be included in the record. Tr.

5764-66. The Board requested that CASE coordinate and perhaps reduce its voluminous set of proposed exhibits. Tr. 5765.

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$3 2-On October 18, 1982, CASE submitted its " Response to Board's Directive Regarding CASE Exhibits." Therein, CASE identified over 240 exhibits in addition to the hundreds already in evidence which had been sponsored by CASE's own witnesses or' introduced through cross-examination of the Applicants' and NRC Staff's witnesses. The NRC Staff and Applicants submitted answers to CASE's response on November 4 and November 18, 1982, respective-ly. On December 7, 1982, the Board issued an Order in which it determined that over 180 of CASE's additional exhibits would be admitted into evidence. Order at 5.

B. Additional CASE Proposed Exhibits On December 14, 1982, CASE submitted a " Motion to Supplement CASE's Exhibits", in which CASE seeks to have introduced into the record what it believes is "new and significant information".

Motion at 1. Specifically, CASE seeks to introduce five docu-ments which it has designated as CASE Exhibits 7 35-6 and 7 38-40.

1. Proposed Exhibits 7 35, 7 36 and 7 39 CASE proposed Exhibits 735, 736, and 739 are documents relating to the NRC Staff's investigation into certain allega-tions of CASE witness Mr. Charles Atchison. Exhibit 735 is I&E Report 8 2-14, dated September 29, 1982. As stated therein, the NRC Staff found no violations or deviations in that investigation and identified one unresolved item regarding an allegation made by Mr. Atchison to the NRC Staff following his testimony in this proceeding on July 30, 1982. CASE proposed Exhibit 7 35, Appendix at 6. CASE proposed Exhibit 736 is a revision of I&E Report 82-

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- 3-14, issued on November 8, 1982. This report was revised and reissued as a result of additional information provided by Appli-cants to the NRC Senior Resident Inspector following issuance of the original I&E Report, as explained in the December 9, 1982 letter from the NRC to Applicant- (CASE Exhibit 739).

2. Proposed Exhibit 738 CASE proposed Exhibit 738 is a Recommended Decision, dated December 3, 198 2, of an Administrative Law Judge with the Depart-ment of Labor regarding the complaint filed pursuant to 42 U.S.C.

5851 and 29 C.F.R. Part 24, by Mr. Atchison against Brown &

Root, Inc., the constructor of Comanche Peak, alleging unlawful discharge from his position at Comanche Peak. That decision recommends a finding in favor of Mr. Atchison and reinstatement '

to his former position.

3. Proposed Exhibit 740 Finally, CASE proposed Exhibit 740 is a letter from Appli-cants to the NRC regarding I&E Bulletin 82-01, Rev. 1, Supplement 1, concerning alteration of radiographic film from piping sub-assemblies supplied by ITT Grinnel for Comanche Peak. As indi-cated in that letter, approximately six of 3949 welds reexamined may not meet applicable code requirements.

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J II. APPLICANTS' ANSWER TO CASE'S MOTION A. General For the reasons set forth below, Applicants urge the Board to deny CASE's motion. CASE requests that before ruling on the instant motion the Board examine a pleading CASE intends to file with the Appeal Board regarding the NRC Staff's appeal of this Board's Order Denying Reconsideration, dated September 30, 1982.

CASE apparently desires that this Board extract whatever argu-ments CASE makes in its filing with the Appeal Board on that matter to support its instant motion.

A motion should contain the grounds on which the movant relies in support of its motion. 10 C.F.R. 2.7 30 (b) . In addi-tion, those grounds must at a minimum be presented with reason-able specificity. Union Electric Company (Callaway Plant, Units 1 and 2), ALAB-348, 4 NRC 225, 231 (1976). CASE's reliance on information to be presented in a brief before the Appeal Board in support of the instant motion is, therefore, wholly improper. To l

require this Board to sift through a document presented to the Appeal Board on a separate matter to identify information to flesh-out CASE's skeletal motion is unfair both to this Board and l the other parties. Accordingly, Applicants urge the Board not to

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consider such information in disposing of CASE's motion.1 B. CASE Proposed Exhibits 735, 736 and 739  ;

I These exhibits primarily concern the NRC's investigation of allegations made by Mr. Atchison at the July hearings. As noted above, the NRC found no instances of violations or deviations as a esult of this investigation. The caly unresolved item on the initial I&E Report concerned an allegation regarding inspection procedures for skewed fillet welds which Mr. Atchison made to the NRC after he had testified on July 30, 1982. This concern was not raised by Mr. Atchison in this proceeding.

In support of its motion, CASE alleges that proposed Exhibit 736, the revision to I&E Report 82-14, " changed certain important items". The revision to the I&E Report only involved a notation that the NRC Staff plans to conduct an inspection of vendor shop welding at some future time. This inspection was planned in response to information provided by Applicants to the NRC subse-

quent to the issuance of the original I&E Report regarding a potentially reportable deficiency involving structural welding performed by NPS Industries. See CASE proposed Exhibit 739.

Report at 5. In light of this plan, the I&E Report was revised and the matter redesignated as an Open Item. CASE proposed Exhibit 7 36, Appendix at 6. CASE evidently believes that a 1 In view of this request by CASE, Applicants reserve the right to supplement this answer to address whatever information pre- ,

sented by CASE in its brief to the Appeal Board may be rele-i vant to this motion. Applicants do so to assure the Board has the benefit of full and complete information regarding these

(' matters should the Board decide nonetheless to consider information in CASE's brief in disposing of this motion.

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-S-matter identified routinely by the Quality Assurance program for Comanche Peak and potentially reportable under 10 C.F.R.

$50.55(e), and for which the NRC plans to conduct an inspection at some future time, constitutes significant new information warranting admission of additional exhibits into the already voluminous record in this proceeding.

Applicants submit that CASE has failed to demonstrate good cause for admitting these documents into the record at this time.

Contrary to CASE's assertion, the revision to I&E Report 82-14 l does not constitute significant new information. The only new information presented in the subsequent I&E Report concerns the

NRC Staff's plans to conduct an inspection of vendor shop-per-formed welding in response to a potentially reportable-deficiency identified by Applicants. No new violations or deviations were identified in the revised report. Further, that the matter was identified and reported reflects that the Quality Assurance pro-gram functioned.

To consider such information as significant requires specu-lation and supposition as to the ultimate disposition of this matter. Such an exercise in prediction certainly cannot raise the matter to the level of " good cause". Further, even should the potentially reportable deficiency be found to be a reportable deficiency pursuant to 10 C.F.R. 50.55(e), and the NRC inspec-tion confirms that determination, CASE would still have to show hcw that information was important to the issues in this proceed-ing. CASE has not even attempted to make such a demonstration.

V Accordingly, Applicants submit CASE has not shown that such information constitutes significant new information that would

' warrant admission of these documents.

For the above reasons, Applicants submit CASE has not demon-strated good cause for admission of proposed Exhibits 735, 736 and 7 39, and urge the Board to deny CASE's motion with respect to these exhibits.

C. CASE Proposed Exhibit 738 This document is a Recommended Decision of an Administrative Law Judge in the action brought by Mr. Atchison before the Department of Labor against Brown & Root, Inc. In support of its motion for receiving this Recommended Decision into the record, CASE merely identifies the document and quotes a portion thereof.

CASE offers no other explanation as to why this document should be received into evidence in this proceeding. The Recommended Decision is not effective until acted upon by the Secretary of Labor. 29 C.F.R. $24.6(b). Thus, it is not dispositive of Mr.

Atchison's complaint before the Department of Labor and thus is 4

of no value in this proceeding. In any event, the proceeding before the Department of Labor is governed by law (42 U.S.C.

5851) and regulations (29 C.F.R. Part 24) which provide for an exclusive remedy before the Department of Labor for employees alleging discrimination of discharge for engaging in " protected i

activities." 42 U.S.C. 5851(a); 29 C.F.R. 24.2(b). That deci-sion is, therefore, founded on an evidenciary record not before the Board that was developed to support findings on legal issues l

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not presented in this proceeding or within the jurisdiction of .

the Board. Accordingly, the recommended decision is of no evi-dentiary value in the instant proceeding.

Finally, all parties have had full opportunity to present testimony and documentary evidence and conduct cross-examination regarding the allegations of Mr. Atchison. This Board also has had the opportunity to examine those witnesses and has a full record on the issues relevant to this proceeding on which to base its own independent evaluation and issue a decision. Therefore, receipt of the Recommended Decision into the record in this pro-ceeding is unnecessary.

Fo. these reasons, Applicant.s submit that CASE has failed to show good cause for receipt into evidence of proposed Exhibit 738, and urge the Board to deny CASE's motion with respect to this exhibit.

D. CASE Proposed Exhibit 740 This document concerns a review by Applicants of radiographs of welding performed by ITT Grinnell on piping subassemblies provided for Comanche Peak. This review was conducted in accord-ance with NRC I&E Bulletin 82-01, Supplement 1, which concerned a dozen facilities which had received the piping subassemblies. In support of its motion, CASE simply notes, as the proposed exhibit states, that some radiographs of welds were found to be altered, but does not state how this matter is relevant to particular issues raised in this proceeding.

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l N l 9-CASE has not previously sought to raise this issue in this proceeding even though I&E Bulletin 82-01 was issued August 18,

'1982. Thus, CASE's instant request is untimely. Further, as stated in proposed Exhibit 740, Applicants have determined that only six out of approximately 3949 welds are potentially not in accordance with applicable code requirements. In addition, the six welds are scheduled for reexamination to determine whether they, in fact, do not meet applicable code requirements and will be dispositioned accordingly. For these reasons, Applicants submit CASE has not shown good cause for admission of proposed Exhibit 740, and urge the Board to deny CASE's motion with respect to this exhibit.

III. CONCLUSION For the foregoing reasons, Applicants urge the Board to deny CASE's motion to supplement its' exhibits. Applicants also urge the Board to deny CASE's request that information to be presented in a brief before the Appeal Board be considered by this Board in disposing of CASE's instant motion.

Respectfully submitted, Ni 4N 5/W4 olas S. Reyholds i

William A. Horin DEBEVOISE & LIBERMAN 1200 - 17th Street, N.W.

Washington, D.C. 20036 (202)857-9817 December 23, 1982  !

counsel for Applicants

e' OOCKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'82 EC 27 A10:25 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) S

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hhl$5G[ SERVI BRANCH TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 and COMPANY, _et _al . ) 50-446 (Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Applicants' Answer to CASE's Motion to Supplement CASE's Exhibits," in the above-captioned matter were served upon the following persons by deposit in the United States mail, first class postage prepaid, this 23rd day of December 1982:

Marshall E. Miller, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Board Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Lucinda Minton, Esq.

Dr. Kenneth A. McCollom Atomic Safety & Licensing Dean, Division of Engineering Board Architecture and Technology U.S. Nuclear Regulatory Oklahoma State University Commission Stillwater, Oklahoma 74074 Washington, D.C. 20555 Dr. Richard Cole, Member Marjorie Ulman Rothschild, Esq.

Atomic Safety and Licensing Office of the Executivo Board Legal Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Chairman, Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory i Commission Washington, D.C. 20555 i

- . . . . - , - - . . - . - - . . , - . - - , _ - . , . , _ _ _ . , - . , . .n .- ,.

O David J. Preister, Esq. Mr. Scott W. Stucky Assistant Attorney General Docketing & Service Branch

,Envi ronmental Protection U.S. Nuclear Regulatory Division Commission P.O. Box 12548 Washington, D.C. 20555 Capital Station Austin, Texas 78711 Mrs. Juanita Ellis President, CASE 1426 South Polk Street Dallas, Texas 75224 l

l William A. Horin cc: Homer C. Schmidt Spencer C. Relyea, Esq.

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